February 17, 2011

Sausage anyone?

By Sausage anyone?

Author: Reed Hopper

You recall the old line from Otto von Bismarck that to retain respect for sausages and laws, one must not watch them in the making.  That's certainly true for the Clean Water Act.  There is general agreement that Clean Water Act jurisprudence is a mess; no one knows how far federal jurisdiction extends.  Blame for this is almost universally placed at the feet of the U.S. Supreme Court.  This is justified, but only in part.  The real culprits are the Corps of Engineers and Environmental Protection Agency.  These agencies have never applied a consistent interpretation of the Clean Water Act.  A GAO audit revealed that Corps officials in the same office could not agree on the scope of the Act.

In Riverside Bayview(1985), the U.S. Supreme Court told the Corps it could regulate navigable waters and certain abutting wetlands.  But the Corps saw this as a blank check and starting regulating upstream.  When the Corps adopted an absurd rule that it could regulate any water body that could be used by migrating birds, the Supreme Court, in SWANCC (2001), told the Corps it had gone too far.  According to the court, neither the Act nor the Constitution authorized federal regulation of isolated water bodies, like mudflats and prairie potholes.  But the Corps wasn't listening, it continued to assert authority over increasingly remote and insubstantial waters, including storm drains and drainage ditches.  In 2006, when the Supreme Court decided Rapanos, the Corps and EPA claimed they could regulate the entire hydrological chain of the U.S. notwithstanding  the Act only authorized regulation of "navigable waters."  

Although the Rapanos decision itself was conflicted because of a 4-1-4 split, a majority of the court–5 Justices– agreed that the Corps could not regulate all waters in the Nation.  Justices Roberts, Kennedy and Breyer urged the Corps and EPA to formally adopt new regulations that clearly defined the scope of agency power under the Clean Water Act.  But these agencies have failed to act.  Instead of promulgating clear and enforceable jurisdictional regulations, the Corps and EPA drafted and are relying on "guidelines" that do not have the force of law and which are inconsistent with the Rapanos decision and are no more clear than the Rapanos decision itself.        

Since the Rapanos decision, activists have pushed legislation in Congress that would broaden the scope of the Clean Water Act to cover all waters, both navigable and nonnavigable, wherever they lie.  That is, every pond, puddle and ditch in the Country.  Fortunately, this remake of the Clean Water Act has never made it out of committee.  But it now appears that the Corps and EPA may be making an end run around the legislative process by adopting new "guidelines" that broaden their own power.    

Marten Law has provided a thorough summary of the current state of affairs here.

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